Sacirbey v. Guccione ( 2009 )

06-5137-pr
Sacirbey v. Guccione
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2007
(Argued: February 26, 2008 Decided: December 9, 2009)
Docket Nos. 06-5137-pr (L), 07-0018-pr (con)
MUHAMED SACIRBEY ,
Petitioner-Appellant,
v.
JOSEPH R. GUCCIONE , United States Marshal for the SDNY; Officer DENNIS SPITZER,
Chief Pretrial Services for the Southern District of New York,
Respondents-Appellees.
Before: KEARSE , LEVAL, and CABRANES, Circuit Judges.
Appeal from a September 7, 2006 order of the United States District Court for the Southern
District of New York (Barbara S. Jones, Judge) denying a petition for a writ of habeas corpus brought
under 28 U.S.C. § 2241. In this case, a treaty authorizes the extradition of an individual who has been
“charged” with a crime and requires that an arrest warrant and supporting materials be provided in
order to obtain that extradition. Where, as here, the relevant arrest warrant was issued by a court that
neither has jurisdiction over the matter nor authority to enforce the warrant, the requirement of the
treaty that an individual be “charged” with an extraditable offense has not been satisfied. Accordingly,
we reverse the order of the District Court denying the petition, grant the petition for a writ of habeas
corpus, vacate the restrictions on Sacirbey’s liberty, and hold that he may not be extradited pursuant to
any formal requests that have been made.
1
Judge Kearse dissents in a separate opinion.
JAMES J. MC GUIRE (Kesari Ruza, Timothy J. McCarthy,
Elizabeth Rotenberg-Schwartz, Sean J. Kirby, of counsel),
Sheppard, Mullin, Richter & Hampton LLP, New York,
NY, for Petitioner-Appellant Muhamed Sacirbey.
ANJAN SAHNI, Assistant United States Attorney (Michael J.
Garcia, United States Attorney, on the brief, Jonathan S.
Kolodner, Assistant United States Attorney, of counsel),
Office of the United States Attorney for the Southern
District of New York, New York, NY, for Respondents-
Appellees Joseph R. Guccione and Dennis Spitzer.
JOSÉ A. CABRANES, Circuit Judge:
In this appeal we consider whether an arrest warrant issued by a foreign court that no longer
has jurisdiction over the accused, nor the power to enforce the warrant, can provide an adequate basis
for the extradition of a United States citizen. This is a question of first impression—and the fact that
this issue has not been previously decided should not be surprising. It is a rare circumstance where the
very document that provides the basis for an extradition request turns out to have been issued by an
entity that no longer has lawful authority over the matter. While the factual and procedural history of
this case is extraordinary, our resolution of it requires only that we apply the plain meaning of the
provisions of the relevant treaty. The treaty authorizes the extradition of an individual who has been
“charged” with a crime and requires that an arrest warrant and supporting materials be provided in
order to obtain that extradition. Because the arrest warrant at issue in this case was issued by a court
that neither has jurisdiction over the matter nor authority to enforce the warrant, the requirement of the
treaty that an individual be “charged” with an extraditable offense has not been satisfied. This defect
falls within the narrow category of issues that is cognizable on habeas review of an extradition order;
we therefore reverse the order of the District Court denying the petition for a writ of habeas corpus.
2
BACKGROUND
A. Factual Overview1
Muhamed Sacirbey, also known as Muhamed Sacirbegovic, was born in 1956 in Sarajevo,
Yugoslavia. At that time, the Communist regime led by Josip Broz (Tito) controlled Yugoslavia, and
Sacirbey’s parents opposed Tito’s authoritarian government. For their dissenting political beliefs,
Sacirbey’s parents were imprisoned for a time. In the 1960s, the Sacirbey family fled Yugoslavia and
immigrated to the United States, where they settled in Ohio. On April 27, 1973, at the age of sixteen,
Sacirbey became a naturalized citizen of the United States. During the years that followed, Sacirbey
attended Tulane University on a football scholarship; he earned a bachelor’s degree and a degree in law
at Tulane and a Master of Business Administration degree at Columbia University. After his admission
to the Bar of the State of New York, Sacirbey worked as a lawyer for a New York law firm. In the
1980s, he left his law firm to work in the financial sector, first as a Vice President at Standard and
Poor’s, the rating agency, and later as Vice President of an investment bank.
On April 5, 1992, the Republic of Bosnia and Herzegovinia (“Bosnia”) declared its
independence from Yugoslavia. The United States officially recognized Bosnia’s independence two
days later, and Bosnia was admitted to membership in the United Nations on May 22, 1992. Shortly
thereafter, Bosnian President Alija Izetbegovic, a leader of the Muslim community of Bosnia, appointed
Sacirbey to serve as Bosnia’s ambassador to the United Nations. Despite international recognition,
Bosnian Serbs continued to oppose independence and, with the support of the government of
Serbia—a neighboring province in the former Yugoslavia—launched a violent campaign to partition
the country along ethnic lines. According to the United States Department of State, “[t]he conflict
1
Unless otherwise noted, the following facts are not in dispute.
3
continued through most of 1995, and many atrocities were committed, including acts of genocide
committed by members of the [Bosnian Serb armed forces] in and around Srebrenica from July 12-22,
1995, where approximately 8,000 Bosnian Muslim men and boys were killed.” Bureau of European and
Eurasian Affairs, U.S. Dep’t of State, Background Note: Bosnia and Herzegovina (2009), available at
www.state.gov/r/pa/ei/bgn/2868.htm (last visited December 8, 2009). Sacirbey, appointed Bosnian
Foreign Minister upon the assassination of his predecessor in 1995, represented Bosnia at peace talks
held in 1995 outside of Dayton, Ohio.2 Those talks lead to the Dayton Peace Accords, which were
formally signed on December 14, 1995 in Paris and which ended the war in Bosnia after more than
three years and ensured Bosnia’s independence under the supervision of a High Representative selected
by the United Nations Security Council. Id.Sacirbey continued to represent Bosnia at the United Nations until 2000. During his eight-year
tenure as Bosnia’s first United Nations ambassador, Sacirbey opened the Permanent Mission to the
United Nations and the General Consulate of Bosnia in New York (the “U.N. Mission”), promoted the
creation of the International Criminal Tribunal for the former Yugoslavia (the “ICTY”),3 and managed
the legal team in an action against Yugoslavia for genocide in the International Court of Justice
(“ICJ”).4 For much of this period, the finances of the U.N. Mission were in disarray. Sacirbey claims
2
Sacirbey’s involvement in the Bosnian peace process has been described in the memoirs of
several United States officials. See Bill Clinton, My Life 668 (describing Sacirbey’s involvement in the
American peace mission to Bosnia and his role as “the eloquent public face of Bosnia on American
television”); Richard Holbrooke, To End a War 34-35 (stating that Sacirbey was his “first Bosnian
friend,” and detailing Sacirbey’s role in the Dayton peace talks); Strobe Talbott, The Great Experiment:
The Story of Ancient Empires, Modern States, and the Quest for a Global Nation 306-07 (characterizing
Sacirbey as “the pugnacious, thoroughly Americanized foreign minister of Bosnia”).
3
Sacirbey also served as Bosnia’s representative to the ICTY.
Sacirbey served as Bosnia’s agent before the ICJ and later as a Vice Chairman of the
4
Preparatory Committee of the International Criminal Court.
4
that he received no salary for his services and that he had to open the U.N. Mission using his personal
resources, including fees from his speaking engagements, and by soliciting contributions from
sympathetic nations. As Sacirbey concedes, funds earmarked for one project were often spent on
another, and personal bank accounts were used to house those funds. See J.A. 11-12 (Affidavit of
Muhamed Sacirbey, Mar. 17, 2005, at ¶¶ 21-27).5
Sacirbey resigned from his ambassadorship and returned to private life in the United States in
December 2000. After his resignation, Sacirbey claims to have learned that Bosnian Foreign Minister
Zlatko Lagumdzija, a perceived political adversary of Sacirbey and allegedly a former official in the
Communist Party, had launched an investigation of him. In early 2001, the Foreign Ministry requested
that the Cantonal Prosecutors Office in Sarajevo6 investigate alleged financial irregularities at the U.N.
Mission during Sacirbey’s tenure. On April 11, 2001, the Cantonal Prosecutor submitted a Demand for
Investigation to the Cantonal Court, alleging that Sacirbey had abused his office in violation of Bosnian
law. Specifically, the prosecutor alleged that (1) Sacirbey had embezzled $610,982.46 and (2) there was
a $1.8 million shortfall in an investment account over which Sacirbey had signature authority.7 See
5
Sacirbey also claims that he was authorized to reallocate funds in this fashion, and that his
efforts before the ICTY and ICJ were approved by President Izetbegovic. See J.A. 10 (Affidavit of
Muhamed Sacirbey, Mar. 17, 2005, at ¶ 18).
6
Following the Dayton Peace Accords, Bosnia was divided into two sub-divisions: the
Federation of Bosnia and Herzegovina and Republika Srpska. The Federation of Bosnia and
Herzegovina was, in turn, divided into ten “cantons.” See Bureau of European and Eurasian Affairs,
U.S. Dep’t of State, Background Note: Bosnia and Herzegovina (2009), available at
www.state.gov/r/pa/ei/bgn/2868.htm (last visited May 27, 2009). As the District Court observed,
“Cantons [are] similar to municipalities or counties in the United States.” Sacirbey v. Guccione, No. 05
Cv. 2949, 2006 U.S. Dist. LEXIS 64577, at *3 n.3 (S.D.N.Y. Sept. 7, 2006) (“Sacirbey II”).
7
The $1.8 million shortfall was determined by a commission that investigated the matter not
to be part of the U.N. Mission’s deficit because those funds had been donated by the government of
Saudi Arabia and therefore did not belong to the Ministry. Sacirbey II, 2006 U.S. Dist. LEXIS 64577,
at *5 n.6.
5
Sacirbey v. Guccione, No. 05 Cv. 2949, 2006 U.S. Dist. LEXIS 64577, at *4 (S.D.N.Y. Sept. 7, 2006)
(“Sacirbey II”). In response to the prosecutor’s application, the Cantonal Court issued a Decision to
Investigate Sacirbey on August 20, 2001, and later, on December 5, 2001, a Decision for Detention and
an International Arrest Warrant for Sacirbey. Id. at *5-6.
Bosnia sought the extradition of Sacirbey in a formal request to the United States Department
of Justice dated January 29, 2002. Bosnia’s request was made pursuant to an extradition treaty executed
in 1902 by the United States and the Kingdom of Serbia (the “Treaty”),8 which provides, in part, that
The Government of the United States and the Government of Servia [sic] mutually agree to
deliver up persons who, having been charged with or convicted of any of the crimes and
offenses specified in the following article, committed within the jurisdiction of one of the high
contracting parties, shall seek an asylum or be found within the territories of the other:
Provided, that this shall only be done upon such evidence of criminality as, according to the
laws of the place where the fugitive or person so charged shall be found, would justify his or
her apprehension and commitment for trial if the crime or offense had been committed there.
Treaty for Mutual Extradition of Fugitives from Justice, U.S.-Serb., art. I, Mar. 7, 1902 (date of
ratification by the President), 32 Stat. 1890, 12 Bevans 1238. Under Article II of the Treaty,
“[e]mbezzlement by public officers” is among the offenses specified for extradition. Id. In order to
secure extradition of a “fugitive [who] is merely charged with crime,” Article III of the Treaty requires
the requesting government to provide “a duly authenticated copy of the warrant of arrest in the country
where the crime has been committed, and of the depositions or other evidence upon which such
warrant was issued . . . .” Article IV provides that “in advance of the presentation of formal proofs,
8
This treaty applies to Bosnia as a successor state to the former Federal Peoples’ Republic of
Yugoslavia, which was, in turn, a successor state to the Kingdom of Serbia. See In re The Extradition
of Muhamed Sacirbegovic, No. 03 Crim. Misc. 01, 2005 U.S. Dist. LEXIS 707, at *30-32 (S.D.N.Y. Jan.
19, 2005) (“Sacirbey I”) (“[T]he United States . . . consider[s] the Treaty to be in effect between the
United States and [Bosnia].”); see generally 767 Third Ave. Assocs. v. Consulate Gen. of the Socialist Fed.
Republic of Yugo., 218 F.3d 152, 156 (2d Cir. 2000) (noting that Bosnia is among the successor states
of Yugoslavia); Ivancevic v. Artukovic, 211 F.2d 565, 573 (9th Cir. 1954) (“[T]he extradition treaty
executed by and between the United States and Serbia in 1902 is a present, valid and effective treaty
between the United States and the Federal Peoples’ Republic of Yugoslavia.”).
6
complaint on oath . . . shall be made by an agent of the Government of Servia [sic] before a judge or
other magistrate authorized to issue warrants of arrest.” In addition, the Treaty provides that “[n]either
of the high contracting parties shall be bound to deliver up its own citizens or subjects under the
stipulations of this Treaty,” id. at art. V, and that “offense[s] of a political character” may not lead to
extradition under the Treaty, id. at art. VI.
While the Treaty expressly authorizes the United States to decline to extradite Sacirbey because
he is a U.S. citizen, the Department of State is authorized by statute to extradite U.S. citizens who
otherwise come within the scope of the relevant extradition treaty. See 18 U.S.C. § 3196 (“If the
applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign
country, the Secretary of State may, nevertheless, order the surrender to that country of a United States
citizen whose extradition has been requested by that country if the other requirements of that treaty or
convention are met.”). The Department of State appears to have chosen to exercise its discretion in
this case by requesting Sacireby’s extradition. On March 17, 2003, the Department of Justice filed a
Complaint for Arrest with a View Towards Extradition of Sacirbey in the United States District Court
for the Southern District of New York. Sacirbey was arrested in March 2003 and detained for over a
year until he was released on bail in July 2004.9
B. Procedural History
The matter was assigned to Magistrate Judge Frank Maas for a determination of whether
Sacirbey should be extradited pursuant to Bosnia’s request. See In re The Extradition of Muhamed
Sacirbegovic, No. 03 Crim. Misc. 01, 2005 U.S. Dist. LEXIS 707, at *1 (S.D.N.Y. Jan. 19, 2005) (“Sacirbey
I”). Judge Maas held a hearing on December 23, 2003, during which the government introduced the
9
By contrast, the Cantonal Court’s related Order of Detention authorizes Sacirbey’s
detention for a “not . . . longer than one month.” J.A. 303 (“Decision for Detention,” Cantonal
Court in Sarajevo, Dec. 5, 2001).
7
following evidence in support of extradition: (1) the Cantonal Court’s August 20, 2001 Decision to
Investigate; (2) the Cantonal Court’s December 5, 2001 Decision for Detention and International
Arrest Warrant for Sacirbey; (3) the sworn statements of three witness; and (4) an affidavit from Robert
E. Dalton, the Assistant Legal Adviser for Treaty Affairs at the United States Department of State,
briefly explaining the history of the Treaty. See id. at *10-17; Appellees’ Br. 7-8.
Sacirbey opposed extradition on the grounds that (1) there was no valid extradition treaty
between the United States and Bosnia, (2) the offense of Abuse of Office or Authority for which
extradition was sought failed to meet the Treaty requirements, (3) Bosnia had failed to charge him
formally with an extraditable offense; (4) Bosnia had failed to establish probable cause to believe that
he committed any crimes, and (5) his conduct fell within a Treaty exception for crimes of a political
character. Sacirbey I, 2005 U.S. Dist. LEXIS 707, at *2. In support of his case, Sacirbey offered his own
testimony, as well as the testimony of Paul Robert Williams, a former State Department employee and
current professor of law, and the declaration of Michael Hartmann, then an adviser to the State
Department on matters of criminal prosecution in Afghanistan, as an expert on Bosnian criminal law.
Sacirbey testified that the finances of the U.N. mission were haphazard during his tenure and that his
political adversaries were using a criminal investigation to retaliate against him. Id. at *20-25. Professor
Williams corroborated Sacirbey’s claims, testifying that “after Sacirbey left office, the party controlling
the Bosnian government changed hands, and the new party, ‘which was the former communist party,
essentially recloaked, had a very specific motive in going after members of the former regime to
discredit them for political reasons.’” Id. at *19-20.
In an Opinion and Order dated January 19, 2005, Magistrate Judge Maas granted the extradition
request. Rejecting Sacirbey’s arguments, Magistrate Judge Maas concluded that (1) Bosnia had
succeeded to the Treaty, see id. at *33-34; (2) the offense of “abuse of authority” was sufficiently
8
equivalent to “embezzlement by public officers” to warrant extradition under the Treaty, see id. at *45;
(3) a formal criminal charge is not required by the Treaty, see id. at *47-48, (4) probable cause had been
established by the affidavits submitted in support of the extradition request, see id. at *57; and (5) the
political-crimes exception did not apply to allegations of embezzlement, see id. at *58-61. On January
25, 2005, Judge Maas issued a Certification of Extraditability and Order of Commitment. [A 794]
Three months later, Sacirbey filed a petition for a writ of habeas corpus pursuant to 28 U.S.C
§ 2241 in the United States District Court for the Southern District of New York (Barbara S. Jones,
Judge).10 Observing that the scope of its review was limited to determining whether (1) the magistrate
judge had jurisdiction, (2) the charged offense fell within the Treaty and (3) there was a reasonable
ground to believe the accused guilty of the charged offense, the District Court denied Sacirbey’s
petition. See Sacirbey II, 2006 U.S. Dist. LEXIS 64577, at *19 (citing Fernandez v. Phillips, 268 U.S. 311,
312 (1925)).
In his habeas petition, Sacirbey did not challenge Magistrate Judge Maas’s jurisdiction over
Bosnia’s extradition request, so that ground for habeas relief was effectively conceded. See id. at *19
n.10. Instead, he pressed the two other claims cognizable on habeas review, and made several
constitutional challenges to the adequacy of the proceedings before Magistrate Judge Maas.
With respect to the second claim cognizable on habeas review, Sacirbey failed to persuade the
District Court that he was not “charged” with an extraditable offense.11 Sacirbey argued, inter alia, that
legal reforms in Bosnia had deprived the Cantonal Court of jurisdiction over this matter, thereby
10
Sacirbey could not appeal Magistrate Judge Maas’s decision because “[a]n order granting or
denying [extradition] is not appealable. An extraditee’s sole remedy from an adverse decision is to
seek a writ of habeas corpus; the Government’s sole remedy is to file a new complaint.” Ahmad v.
Wigen, 910 F.2d 1063, 1065 (2d Cir. 1990) (internal citations omitted).
Before Judge Jones, Sacirbey abandoned his argument that Bosnia did not succeed to the
11
Treaty. See Sacirbey II, 2006 U.S. Dist. LEXIS 64577, at *21.
9
nullifying the arrest warrant for Sacirbey. At oral argument before the District Court, counsel for
Sacirbey emphasized, “The Cantonal Court is done. It does not exist . . . . The old system under which
my client was charged has disappeared.” J.A. 845 (Tr. of Proceedings 50:1-4, Oct. 4, 2005). In light of
the government’s concession that “[t]here is ambiguity” as to whether the Cantonal Court has
jurisdiction over the investigation of Sacirbey,” J.A. 851 (Tr. of Proceedings 56:15-16, Oct. 4, 2005), the
District Court authorized the parties to submit additional briefing on the question of whether a court
had jurisdiction over the investigation of Sacirbey.
Pursuant to the District Court’s authorization, Sacirbey submitted declarations from his
Bosnian lawyer, Zlatan Terzic, and from Michael Hartmann, the same expert who had previously filed a
declaration in opposition to the government’s application to extradite Sacirbey. The Terzic declaration
stated that, based on Terzic’s personal inquiries, neither the Cantonal Court nor the Court of Bosnia
and Herzegovina (the “National Court”) “has been seized of the case against . . . Sacirbey. Therefore,
there is no forum available to us to approach for resolution, to petition for appropriate remedies, or to
challenge the propriety and legality of this allegedly ongoing investigation.” J.A. 871-72 (Nov. 22, 2005
Decl. of Zlatan Terzic ¶ 2). The Hartmann Declaration stated flatly that, “by the admissions of the
Bosnian [government] . . . neither the National nor Cantonal Court, nor the Cantonal Prosecutor, have
possession of the case. The only state organ not denying possession of the case but rather affirming its
possession is the office of the National Prosecutor.” J.A. 910 (Nov. 22, 2005 Decl. of Michael
Hartmann ¶ 25). Sacirbey argued that, because no court had jurisdiction over his case, he was not
charged with a crime, but only the target of an investigation.12
12
In a telephonic conference before Magistrate Judge Maas, Professor Cherif Bassiouni,
testifying on behalf of Sacirbey, suggested that it was within Bosnia’s power to dispel any ambiguity
caused by the changes its legal system. He testified as follows:
As a matter of formal submissions[,] when an extradition is submitted[,] it is submitted by a
10
In response, the government submitted two letters written by Amra Kosovic, Counselor to the
Bosnian Embassy in Washington, D.C. Kosovic’s first letter, dated October 11, 2005, stated that “[the
National Court] will proceed in the matter of [Sacirbey] if the request for extradition would be
approved by the appropriate authorities of [the] United States.” J.A. 960 (Oct. 11, 2005 Letter of Amra
Kosovic). A second letter, dated November 10, 2005, was more equivocal on the question of whether
the National Court had jurisdiction over the case. Kosovic’s letter stated in relevant part:
The Cantonal Court . . . exists and hears all cases that are within its jurisdiction. During the
period of justice system reforms, the [National Court] was established and the [National] Court
can, on request of the parties in a case, decide to hear this case of extradition or any other case if the
necessary requirements according to the [Bosnian Criminal Procedure Code are met]. As you
were informed, [the] Prosecutor’s Office of Bosnia . . . has sent notice that [it] took the
investigation which was previous[ly] held by [the] Prosecutor’s Office of Canton Sarajevo.
J.A. 961 (Nov. 10, 2005 Letter of Amra Kosovic) (emphasis added). Recognizing that these letters
“do[ ] not elaborate on the relationship between the Cantonal Court, which originally issued the arrest
warrant and demand for investigation against Mr. Sacirbey, and the [National Court], which now
appears to be . . . seized of jurisdiction over Mr. Sacirbey’s case,” the government argued that these
government and attached to it are judicial documents. When Bosnia filed its request, it had a
document presented by its executive branch[,] attached to it were the documents by the
judicial branch in accordance with the treaty and in accordance with international practice.
What happened is an intervening factor in which as far as we’re concerned we do not know
its implications which says the person who issued that original warrant no longer ha[s] that
authority.
...
[T]he [United States] Government may be in a better position to save us all the time and
effort to have to argue what is the intent of this new Bosnian law by getting some official
judicial document from the requesting state [i.e., Bosnia] that confirms the ongoing validity
of prior warrants . . . issued by Cantonal prosecutors.
J.A. 405-06 (Tr. of Proceedings 13:12-22, 14:22-15:1, Nov. 3, 2003). The Bosnian government did
not make a submission along the lines suggested by Professor Bassiouni.
11
letters nevertheless demonstrated that “a Bosnian court . . . would handle Mr. Sacirbey’s proceeding
upon his extradition.” J.A. 958 (Nov. 22, 2005 Letter of Assistant United States Attorney Anjan Sahni).
The District Court agreed with the government. Explaining that the “issue arises because of
[Bosnia’s] change from a civil law to a common law system[13] since the issuance of the original
Demand against Sacirbey,” the District Court found that “the investigative functions which had been
vested in [Bosnia’s] civil law courts were transferred to independent prosecutors at the cantonal and
national levels[, and] a National Court system was established, equivalent to the United States federal
court system, and a new National Criminal Code was adopted.” Sacirbey, 2006 U.S. Dist. LEXIS 64577at *23 n.12. The District Court concluded that, “by the time the United States Government filed the
Complaint, the Investigative Office of the Cantonal Court that had issued the Warrant Order no longer
had any power to enforce it.” Id. These developments were “quite beside the point,” in the view of the
District Court, because “[a]ll that is required is that Sacirbey be ‘charged,’ which he had been at the
time his extradition was sought, and continues to be.” Id. at *23.
Relying on authority from the Seventh Circuit and a district court in our Circuit, the District
Court observed that “[t]he term ‘charge,’ in this context, has been interpreted by courts to require
something less than a formal charge: for example, the requirement has been deemed satisfied where a
subject is ‘accused,’ or the requesting nation ‘intends to prosecute’ him.” Id. at *21 (quoting In re
13
Apparently, this change refers to Bosnia’s transition from a system of court-conducted
prosecutions to an adversarial system with independent prosecutors and a neutral judge. It cannot
be gainsaid that the current administrative and political situation in Bosnia is uncertain. See USAID,
Bosnia-Herzegovinia: Overview, available at www.usaid.gov/locations/europe_eurasia/countries/ba/ (last
visited May 27, 2009) (“After extensive negotiations, the European Union (EU) signed a
Stabilization and Association agreement with [Bosnia] in 2008, the first step in the process of
becoming a candidate for EU membership. However, ethnic tensions and a largely dysfunctional,
multi-layered governance structure geared toward safeguarding the rights of the various ethnic
groups still hinder development. Reforms, such as establishing strong state-level institutions,
privatizing state-owned industry, fighting corruption, and making meaningful progress in the rule of
law, require continued effort.”).
12
Assarsson, 635 F.2d 1237, 1242 (7th Cir. 1980) (“Assarsson I”); Borodin v. Ashcroft, 136 F. Supp. 2d 125,
129 (E.D.N.Y. 2001)) (brackets omitted). The District Court held that the evidence showed Bosnia’s
intent to prosecute Sacirbey for abuse of authority. This determination was based on the record
developed in the proceedings before Judge Maas and on the two letters written by Kosovic, the
Bosnian Embassy counselor, which demonstrated to the District Court “a present intent to prosecute
Sacirbey in the National Court [of Bosnia].” Sacirbey II, 2006 U.S. Dist. LEXIS 64577, at *23 (emphasis
added).
The District Court also determined that the charged offense, “abuse of authority,” fell within
the Treaty’s enumerated offenses—namely, the offense of embezzlement. See id. at *24 (citing Art. II
of the Treaty). It further held that the requirement of “dual criminality”—i.e., that the alleged conduct
constitute a criminal offense in both countries—was “easily satisfied” because “there are numerous
federal crimes for which Sacirbey could have been charged in the United States based on the allegations
against him.” Id. at *33. The political offense exception set forth in Article VI of the Treaty did not
bar Sacirbey’s extradition, according to the District Court, because the exception applied to “political
offenses—not political figures,” id. at *34, and the financial misconduct at issue here did not constitute a
political offense. Accordingly, the District Court concluded that the charged offense fell within the
scope of the Treaty.
Turning to the third claim cognizable on habeas review of an extradition order, the District
Court determined that there was a reasonable basis to believe Sacirbey was guilty of the charged
offense. The District Court listed the evidence against Sacirbey:
(i) there were significant shortfalls in the [U.N.] Mission’s account, over which Sacirbey had
signature authority; (ii) Sacirbey refused to explain certain non-routine expenditures to Ministry
representatives, even though [Bosnian] procedures do not allow for confidential expenditures;
(iii) President Izetbegovic expressly denied that Sacirbey had been authorized to spend
[Bosnian] funds on the ICJ and ICTY cases; (iv) Sacirbey represented that he would be able to
13
restore some of the missing funds, but then failed to do so; (v) he may have evaded the efforts
of [Bosnian] authorities to question him about the accounting problems; and (vi) he failed to
account properly for personal advances that he had taken against the Mission account.
Id. at *38-39. In the District Court’s judgment, “[t]his evidence clearly support[ed] [Magistrate] Judge
Maas’s determination that a finder of fact reasonably could conclude that Sacirbey embezzled funds
from the Mission account and used them for his own personal needs.” Id. at *39 (internal quotation
marks omitted).
The District Court also rejected Sacirbey’s constitutional challenges to the adequacy of the
proceedings before Magistrate Judge Maas. First, Sacirbey argued that the government’s refusal to
produce evidence relating to the role of United States officials in preparing or pursuing the extradition
request violated Brady v. Maryland, 373 U.S. 83 (1963). The District Court disagreed, explaining that
“[e]ven if Brady can be said to apply in the extradition context . . . Brady would not extend to Sacirbey’s
discovery requests . . . because Sacirbey’s requests were directed not at exculpatory evidence, but rather
information regarding the political motivations, if any, behind [Bosnia’s] request for his extradition.”
Sacirbey II, 2006 U.S. Dist. LEXIS 64577, at *44 (emphasis in original). Second, Sacirbey challenged
Magistrate Judge Maas’s refusal to reopen the extradition hearing to allow the submission of a reply
declaration in response to an expert declaration submitted by the government. The District Court
rejected the challenge because Sacirbey failed to show prejudice. Id. at *45-46. Third, Sacirbey urged
the District Court to consider the danger and deprivation of due process he would face if extradited to
Bosnia. Citing the “well-entrenched rule of non-inquiry” into the legal procedures of a country
requesting extradition pursuant to a treaty, the District Court did not entertain this challenge. Id. at *47;
see Ahmad v. Wigen, 910 F.2d 1063, 1066 (2d Cir. 1990) (“A consideration of the procedures that will or
may occur in the requesting country is not within the purview of a habeas corpus judge.”).
14
Having made these determinations, the District Court denied Sacribey’s habeas corpus petition.
This appeal followed.
DISCUSSION
On appeal, Sacirbey reiterates the arguments that he presented to the District Court, including
that he was not charged with an extraditable offense under the Treaty. This argument presents a
question of first impression for our Court, requiring us to examine a relatively undeveloped area of
law.14
A. Standard of Review
The basis for Sacirbey’s petition for habeas corpus is that, by means of the extradition
proceedings against him in the United States District Court for the Southern District of New York, he
has been placed “in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3). Our review of the denial of a petition for habeas corpus in extradition
proceedings is “narrow” in scope. Murphy v. United States, 199 F.3d 599, 601 (2d Cir. 1999). A
reviewing court can consider only three issues: “(1) whether the judge below had jurisdiction; (2)
whether the offense charged is extraditable under the relevant treaty; and (3) whether the evidence
presented by the Government established probable cause to extradite.” Cheung v. United States, 213 F.3d
82, 88 (2d Cir. 2000); see also Fernandez, 268 U.S. at 312.
We are not at liberty to second guess the determination of the magistrate judge to issue an order
certifying a request for extradition. Under our precedents, “[h]abeas corpus is not a writ of error, and it
is not a means of rehearing what the [extradition] judge or magistrate already has decided.” Ahmad, 910
Our efforts in this regard are aided by the thorough and well-reasoned opinions of the
14
judges who have previously considered this matter. That our conclusion differs from theirs should
not be read to disparage in any way whatsoever the conscientious handling of this case by the
District Court.
15
F.2d at 1066; accord Garcia-Guillern v. United States, 450 F.2d 1189, 1192-93 (5th Cir. 1971) (“A writ of
habeas corpus cannot be used to hear for a second time the findings of the court which conducted the
initial hearing. As has been said often, habeas corpus cannot take the place of a writ of error.”).
It is nevertheless “our duty . . . to ensur[e] that the applicable provisions of the treaty and the
governing American statutes are complied with.” Petrushansky v. Marasco, 325 F.2d 562, 565 (2d Cir.
1963) (Marshall, J.); see also Murphy, 199 F.3d at 601-02 (“The function of habeas review in this context
is to test only the legality of the extradition proceedings.” (internal quotation marks omitted)).
With these principles in mind, we review the factual findings of the District Court for clear
error and its legal determinations de novo. See Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir. 2009)
(providing the general standard for review of habeas corpus petitions); cf. Armstrong v. Guccione, 470 F.3d
89, 96 (2d Cir. 2006) (reviewing de novo a petitioner’s legal arguments—raised under 28 U.S.C. §
2241—that his confinement for civil contempt violated the Fifth Amendment and several federal
statutes).
B. Sacirbey Was Not Charged with an Extraditable Offense under the Treaty.
Sacirbey argues that he has not been “charged” with an extraditable offense pursuant to the
terms of the Treaty.15 On Sacirbey’s reading of the record, the evidence shows that an investigative
warrant for his arrest was issued in 2001, but the issuing court was subsequently dissolved, with the
consequence that “no [c]ourt in Bosnia is currently seized of the matter.” Appellant’s Br. 24 (emphasis
in original). In Sacirbey’s view, the putative interest that Bosnia asserted in correspondence cannot
remedy the inadequacy of the warrant that underlies Bosnia’s extradition request. The government
responds that the Treaty “does not condition extradition on formal charges,” and “all that need be
15
Because we conclude that Sacirbey’s argument on this point has merit, we do not consider
the other grounds for relief raised in his petition.
16
shown is that the requesting nation intends to prosecute the extraditee.” Appellees’ Br. 34-35. Under
the government’s reading of the record, “Bosnia has repeatedly and unambiguously” indicated its
intention to prosecute Sacirbey. Id. at 35. As noted above, the District Court agreed with the
government’s view of the evidence. Relying on non-binding precedents construing similar language in
other treaties, the District Court observed that “[t]he term ‘charge,’ in this context, has been interpreted
by courts to require something less than a formal charge: for example, the requirement has been
deemed satisfied where a subject is ‘accused,’ or the requesting nation ‘intend[s] to prosecute’ him.”
Sacirbey II, 2006 U.S. Dist. LEXIS 64577, at *21 (internal citations omitted).
In one of the cases on which the District Court relied, Assarsson I, the petitioner argued that
because “a formal document, called a ‘charge’ in the Swedish criminal code, . . . ha[d] not yet been filed
against him, he [could not] be extradited.” 635 F.2d at 1239. The Seventh Circuit rejected this
argument on the grounds that (1) “[t]he filing of formal charges is not stated anywhere [in the treaty] as
a prerequisite to extradition,” id. at 1242; and (2) U.S. courts are not empowered to “review compliance
with foreign criminal procedure” in the course of ordering extradition pursuant to a valid treaty, id. at
1244. The Eighth Circuit reached the same conclusion in a case involving the brother of the petitioner
in Assarsson I. In re Assarsson, 687 F.2d 1157 (8th Cir. 1982) (“Assarsson II”). The Eighth Circuit
adopted the Seventh Circuit’s holding that, where “[t]he filing of formal charges is not stated anywhere
as a prerequisite to extradition . . . , we may not review the magistrate’s determination that [the
extraditee] was charged under the terms of the treaty.” Assarsson II, 687 F.2d at 1160 (quoting Assarsson
I, 635 F.2d 1242).
The government informs us that the reasoning of Assarsson I and Assarsson II, has been adopted
by the Ninth Circuit as well. Appellees’ Br. 35; see Emami v. U.S. Dist. Court for the N. Dist. of Cal., 834
F.2d 1444, 1448-49 (9th Cir. 1987). Like the Seventh and Eighth Circuits, the Ninth Circuit determined
17
that, where an extradition treaty does not condition extradition on the filing of formal charges, it would
not read such a requirement into the treaty. That court explained, “We refrain from interpreting the
requirements of German criminal procedure [with respect to the filing of a public charge] both out of
respect for German sovereignty and because we recognize the chance of erroneous interpretation is
much greater when we try to construe the law of a country whose legal system is not based on common
law principles.” Id. at 1449.16
Similar “formal-charge” arguments have been rejected by other courts, including district courts
in this Circuit. These courts have also addressed the question of how to establish that a crime has been
“charged” for the purposes of an extradition treaty, holding that a demonstrated intent to prosecute on
the part of the country requesting extradition is sufficient. See Borodin v. Ashcroft, 136 F. Supp. 2d 125,
130 (E.D.N.Y. 2001) (“American courts cannot become enmeshed in the technicalities of foreign
criminal processes, and . . . the ‘charge’ requirement is satisfied by a requesting nation’s intent to prosecute
as evidenced by the record.” (emphasis added)); In re La Salvia, No. 84 Cr. Misc. 1, 1986 U.S. Dist. LEXIS
29789, at *16-17 (S.D.N.Y. Jan. 31, 1986) (“[T]he reference to ‘persons . . . charged’ in [the treaty] . . . is
a generic term referring to those persons whose extradition is sought so that they may be brought to trial.”
16
The government also relies on the conclusory statement of the Fifth Circuit that “[the]
contention that [extraditee] has never been properly or legally charged with a crime in accordance
with the treaty is . . . not appropriate for consideration [on habeas review].” Garcia-Guillern, 450 F.2d
at 1193 n.1. This statement is at odds with the determinations of the Seventh, Eighth and Ninth
Circuits that they have jurisdiction to consider this question on habeas review. See Emami, 834 F.2d
at 1448 (“Whether a treaty conditions extradition upon the filing of formal charges is a question
cognizable on appeal from the denial of a petition for habeas corpus.”); Assarsson II, 687 F.2d at
1160 (“‘The existence of formal charges can be reviewable, then, only if the treaty itself conditions
extradition for the offenses listed . . . on the existence of formal charges.’” (quoting Assarsson I, 635
F.2d at 1241)). We note that the Fifth Circuit’s statement is broader than the government’s position,
which is that the status of the charges against Sacirbey are not reviewable on a habeas corpus
petition because the Treaty does not require formal charges as a condition of extradition. See
Appellees’ Br. 38 (“[The Treaty] does not require as a condition of extradition that an extraditee be
formally charged. Accordingly, Sacirbey’s arguments regarding the status of his charges in Bosnia
are beyond the purview of habeas review.”).
18
(emphasis added)); cf. In re Extradition of Lehming, 951 F. Supp. 505, 512 (D. Del. 1996) (“[S]ufficient
evidence of an intent to prosecute exists making extradition proper under these circumstances.”) (emphasis
added).
The government interprets these precedents to stand for the following proposition: When
extradition treaties state that an individual must be “charged” with a crime in order to be extradited, but
do not require the filing of an accusatory instrument, a state seeking extradition need show only an
intent to prosecute the individual in order to satisfy the requirement that he be “charged” with a crime.
This proposition appears reasonable insofar as it gives meaning to treaty language stating that an
individual must be “charged” with an offense in order to be extradited, while avoiding unwarranted
incursions into the fine details of foreign criminal procedure. See, e.g., Jhirad v. Ferrandina, 536 F.2d 478,
484-85 (2d Cir. 1976) (“ It is not the business of our courts to assume the responsibility for supervising
the integrity of the judicial system of another sovereign nation. Such an assumption would directly
conflict with the principle of comity upon which extradition is based.”). Applying that teaching to this
case, the government urges us to conclude that, because the Treaty requires that an individual be
“charged” with a crime but does not require that formal charges be brought, a “clear intent” to
prosecute is sufficient to satisfy the terms of the Treaty. Appellees’ Br. 44.
Sacirbey responds that one additional proposition follows from the cases cited by the District
Court and the government—“that there at least be a judicial body in the requesting state seized of the
matter, to which the extraditee can petition for relief.” Appellant’s Reply Br. 8. Sacirbey observes that,
in all of these cases, an “instituted judicial proceeding,” id. was underway in the requesting country. See
Emami, 834 F.2d at 1447 (Bochum Local Court in Germany); Assarsson II, 687 F.2d at 1158 (Malmo
District Court in Sweden); Assarsson I, 635 F.2d at 1239 (Malmo District Court in Sweden); Borodin, 136
F. Supp. 2d at 127 (proceedings before a Swiss Examining Magistrate); In re Extradition of Lehming, 951
19
F. Supp. at 508 (Saarbrucken District Court in Germany); In re La Salvia, 1986 U.S. Dist. LEXIS 29789,
at *21 (Federal Court of First Instance in Penal and Correctional Matters in Argentina). Based on this
observation, Sacirbey argues that the Treaty should be read to require a showing of “[t]he presence of a
judicial authority conducting proceedings toward prosecution of the potential extraditee.” Appellant’s
Br. 23. In the absence of such a requirement, Sacirbey fears that “an extraditee may . . . be handed over
to political officers of a foreign country for arbitrary and potentially brutal prosecution.” Id. at 24. He
urges us to conclude that, “because no existing [c]ourt has issued a warrant for his arrest or assumed
responsibility for his prosecution or protection,” he has not been “charged” with a crime under the
Treaty. Appellant’s Reply Br. 11.
We appreciate the force of Sacirbey’s concerns. Indeed, he may be right that extradition treaties
should contain provisions ensuring that a judicial body in the requesting country stand ready to ensure
procedural regularity upon the transfer of custody over the accused. Whether or not the United States
should condition extradition—particularly the extradition of its own citizens—on such safeguards is
not, however, a question over which this Court has jurisdiction. “[T]he question of the wisdom of
extradition remains for the executive branch to decide.” Murphy, 199 F.3d at 602 (internal quotation
marks omitted). Our power, by contrast, is “limited to ensuring that the applicable provisions of the
treaty and the governing American statutes are complied with.” Petrushansky, 325 F.2d at 565.
In keeping with that limited authority, we examine the requirements of the extradition treaty in
this case. “In construing a treaty, as in construing a statute, we first look to its terms to determine its
meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992); see also Kahn Lucas Lancaster v. Lark
Int’l, 186 F.3d 210, 215 (2d Cir. 1999) (“Treaties are construed in much the same manner as statutes[,]
[and their interpretation] must account for the . . . full text, language as well as punctuation, structure
and subject matter.” (internal citations and quotation marks omitted)). A basic canon of statutory
20
interpretation, which is equally applicable to interpreting treaties, is to avoid readings that “render
statutory language surplusage” or “redundant.” Filler v. Hanvit Bank, 378 F.3d 213, 220 (2d Cir. 2004);
cf. Restatement (Second) of Contracts § 203(a) (1981) (“[A]n interpretation which gives a reasonable,
lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part
unreasonable, unlawful, or of no effect.”). In addition, we have observed that “the meaning of one
term may be determined by reference to the terms it is associated with, and that where specific words
follow a general word, the specific words restrict application of the general term to things that are
similar to those enumerated.” City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 401 (2d Cir. 2008)
(brackets and internal quotation marks omitted); cf. Restatement (Second) of Contracts § 203(c) (1981)
(“[S]pecific terms and exact terms are given greater weight than general language.”).
In the instant case, our review focuses on “whether the offense charged is extraditable under the
relevant treaty.” Cheung, 213 F.3d at 88 (emphasis added). Article I of the Treaty sets forth a
foundational principle that the states parties “mutually agree to deliver up persons who[ ] hav[e] been
charged with or convicted of any of the crimes and offenses” (emphasis added), which are supplied in
Article II. The remaining articles of the Treaty define the contours of the broad agreement in Article I,
including certain limitations on the breadth of the term “charged.” Most important to the instant case,
Article III of the Treaty imposes a requirement that when “[a] fugitive is merely charged with crime, a
duly authenticated copy of the warrant of arrest in the country where the crime has been committed, and of the depositions
or other evidence upon which such warrant was issued, shall be produced.”17 Treaty art. III (emphases added).
In other words, the “warrant of arrest” is a formal legal instrument that is required by the Treaty to
show that a person has been charged with an extraditable crime. See art. IV (describing the Article III
Articles V and VI of the Treaty provide additional limitations on Article I’s general
17
extradition agreement for a country’s own citizens, id. at art. V, and for people accused of political
crimes, id. at art. VI.
21
warrant requirement as a “presentation of formal proofs” (emphasis added)). Accordingly, we interpret
these provisions to mean that the proof required under the Treaty to establish that an individual has
been “charged” with a crime is a valid arrest warrant and the evidence submitted in order to obtain that
warrant. Any other reading would ignore the express terms of Article III. Cf. Filler, 378 F.3d at 220(stating that courts should avoid readings that “render statutory language surplusage”).
Under this construction of the Treaty, Bosnia can satisfy the requirement that Sacirbey be
“charged” with a crime only if it can provide, inter alia, a valid warrant for his arrest. Bosnia seeks the
extradition of Sacirbey pursuant to an “international arrest warrant” issued by the Cantonal Court in
Sarajevo. However, as the District Court found, the Cantonal Court currently lacks jurisdiction over
the investigation of Sacirbey’s alleged crimes and “no longer ha[s] any power to enforce” the arrest
warrant. Sacirbey, 2006 U.S. Dist. LEXIS 64577, at *23 n.12.18 Such a warrant—one issued by a court
lacking jurisdiction to enforce it—has been described in another context by the Supreme Court as a
“dead letter.” United States v. Verdugo-Urquidez, 494 U.S. 259, 274 (1990) (rejecting an argument that a
warrant issued by a magistrate in the United States would have force in Mexico); see also In re Terrorist
Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, 171 n.8 (2d Cir. 2008) (describing the power
conferred by a valid search warrant). The arrest warrant for Sacirbey was never re-issued—or otherwise
ratified—by a Bosnian court with jurisdiction over this case.19 Accordingly, the existence of this arrest
18
The government does not argue that the District Court’s findings of fact on the
jurisdiction of the Cantonal Court are erroneous, much less clearly erroneous, nor does our review
of the record lead us to question the District Court’s determination.
19
In her dissent, Judge Kearse argues that the original warrant for Sacirbey’s arrest was
transferred to the National Court. However, she provides no evidence or citations to the record
that would support this interpretation. Even assuming arguendo that Sacirbey’s case was transferred,
there is no indication that the Bosnia National Court re-issued, ratified, or acknowledged in any
fashion the arrest warrant.
22
warrant—issued by a court ousted of jurisdiction and no longer able to enforce it—cannot satisfy the
Treaty’s requirement that Bosnia demonstrate a “charge” by producing a valid arrest warrant.
Consistent with its interpretation of the precedents discussed above, the government maintains
that the defect in Bosnia’s application can be remedied by official statements indicating Bosnia’s intent
to prosecute Sacirbey for his alleged crimes. The government points to letters from various Bosnian
officials that allegedly show an intention to prosecute Sacirbey, but proof of such an intention is not
what the Treaty requires.20 Even if it did, these letters are equivocal, at best, on the question of whether
Bosnian authorities intend to prosecute Sacirbey for his alleged crimes. The letter dated October 2,
2003 from Assistant United States Attorney E. Danya Perry to Magistrate Judge Mass states: “[T]he
Cantonal Prosecutor, Mustafa Bisic, confirmed that there is an ongoing criminal investigation against
Sacirbey” and that the Bosnian government sought extradition to further that investigation. J.A 383.
The virtually illegible attachment to the October 2 letter also refers to an “investigation against
Sacirbey” but does not indicate an intention to prosecute, rather than merely investigate, him. Id. at
385.
The letters from Amra Kosovic, Counselor to the Bosnian Embassy in Washington DC,
similarly confirm only that Sacirbey is under investigation in Bosnia, not that the Bosnian government
seeks to prosecute him. Her letter of October 11, 2005 states ambiguously that “the Court of Bosnia
and Herzegovina will proceed in the Matter of Mohamed Sacirbegovic if the request for extradition
would be approved.” Id. at 960. This statement does not hint at how the Bosnian court will
proceed—that is, whether by immediate prosecution or by permitting the prosecutor to undertake
further investigation. Kosovic’s letter of November 10, 2005 does nothing to clarify the matter. In
20
We take no position on what showing is required when an extradition treaty does not
provide any indication of how a requesting state must show that an accused has been “charged”
with a crime.
23
that letter, she states that the “Cantonal Court—the one that issued the warrant and demand for
investigation of Mr. Muhamed Sacirbegovic—was [not] abolished by the justice system reforms,” and
she confirms that the “Court exists and hears all cases that are within its jurisdiction.” J.A 961. Of
course, we know that Sacirbey’s case is no longer within that court’s jurisdiction pursuant to Bosnia’s
judicial reforms. Sacirbey, 2006 U.S. Dist. LEXIS 64577, at *23 n.12. Perhaps recognizing this fact, the
letter notes that “the Court of Bosnia and Herzegovina was established and . . . can, on request of the parties
in a case, decide to hear this case of extradition.” J.A. 961 (emphasis added). Contradicting this conditional
statement regarding the Bosnian court’s jurisdiction, Kosovic reiterates, verbatim from her earlier letter,
that “[t]he Court of Bosnia and Herzegovina will proceed in the Matter of Mohamed Sacirbegovic if the
request for extradition would be approved.” Id. (emphasis added). In addition, she observes that the
“Prosecutor’s office of Bosnia and Herzegovina . . . took the investigation which was previously held by
the Prosecutor’s Office of the Canton Sarajevo.” Id. Again, the letter is devoid of any statement that
Sacirbey is sought for prosecution in Bosnia.21
That nothing more than a criminal investigation of Sacirbey is now pending in Bosnia finds
further support in a letter, dated March 3, 2005, from the Cantonal Court in Sarajevo stating that “no
indictment against [Sacirbey] . . . has been brought before the Municipal Court Sarajevo or the Cantonal
Court in Sarajevo.” Id. at 749. This letter states that the “criminal investigation against [him] . . . was
In her dissenting opinion, Judge Kearse asserts that “will proceed” reflects an active intent
21
to prosecute by the Bosnian government—a contention for which she provides no supporting
authority. Although her interpretation is one feasible reading, the letters are ambiguous. It is that
ambiguity which makes us unable to derive from them an active intent to prosecute.
Judge Kearse argues further that we cannot overturn the District Court’s “factual finding” as
to the meaning of the letters unless that finding is clearly erroneous. We do not base our decision
on the meaning of the letters, however, and offer our interpretation of the letters only in response to
the argument that an “intent to prosecute” is present. As a matter of law, we hold only that the
Treaty requires a valid arrest warrant; there is no valid warrant in the present case; and the terms of
the Treaty were, accordingly, not met. Whether an intent to prosecute can be proven by the letters
is therefore irrelevant to our holding.
24
referred to the Cantonal Prosecutor’s Office Sarajevo on 08/06/2003 for appropriate action.” Id.While formal charges are not required to grant an extradition request, this letter corroborates that an
investigation of Sacirbey in the prosecutor’s office—rather than a prosecution in court22—is pending in
Bosnia. Based on our review of this evidence, we are dubious that Bosnia seeks to prosecute Sacirbey
for a crime.23
In any event, whether Bosnia has “intent to prosecute” Sacirbey is not the relevant inquiry. As
explained above, the Treaty requires a valid arrest warrant as proof that an individual sought for
extradition has been charged with a crime. That requirement is not satisfied by a demonstration of
intent to prosecute. The necessary showing has not been made in this case. All of the “formal
charges” cases cited by the government indicate the existence of a valid arrest warrant issued by a
foreign tribunal. See Emami, 834 F.2d at 1447 (arrest warrant issued by a German court); Assarsson II,
687 F.2d at 1158 (arrest declaration issued by Swedish court); Assarsson I, 635 F.2d at 1239 (arrest
declaration issued by Swedish court); Borodin, 136 F. Supp. 2d at 127 (arrest warrant issued by Swiss
magistrate); In re Extradition of Lehming, 951 F. Supp. at 508 (arrest warrant issued by a German court);
In re La Salvia, 1986 U.S. Dist. LEXIS 29789, at *21 (arrest warrant issued by Argentine court). None
of those cases involve a situation where the issuing tribunal subsequently lost jurisdiction over the case
22
Judge Kearse relies on Bosnia’s Criminal Procedure Code to support her argument and
also to infer the functions and the jurisdictional reach of the National Court. However, she provides
no indication, through Bosnian precedent or otherwise, that Bosnian courts would interpret the
code provisions in the way that she has chosen to interpret them, and her position is contradicted by
the evidence actually in the record: the Cantonal Court was dissolved; no Bosnian authority has
provided a clear statement as to whether there is a prosecution now pending in a Bosnian court; and
Bosnian authorities have issued only ambiguous letters regarding the status of Sacirbey’s case.
23
As described ante, the District Court reached the opposite conclusion, see Sacirbey, 2006 U.S.
Dist. LEXIS 64577, at *23 (“The letters plainly indicate a present intent to prosecute Sacirbey in the
National Court.”), but we need not decide whether this ruling was erroneous because it is irrelevant
to Sacirbey’s extradition.
25
owing to a constitutional reorganization, regime change, or any other reason, such that the arrest
warrant was no longer valid.
Because the record contains no evidence of a valid warrant authorizing the arrest of Sacirbey,
Sacirbey has not been charged with an extraditable offense pursuant to the terms of the Treaty. This
defect falls within the narrow category of issues that is cognizable on habeas review of an extradition
order, see Cheung, 213 F.3d at 88, and we therefore grant Sacirbey’s petition for a writ of habeas corpus.
CONCLUSION
For the reasons stated above, we conclude that Sacirbey has not been “charged” with an
extraditable offense pursuant to the terms of the extradition treaty between the United States and
Bosnia. He is therefore entitled to habeas relief.
We also note, in passing, that, if Bosnia renews its request to extradite Sacirbey, the Department
of State is authorized by the extradition treaty and by statute to refrain from extraditing Sacirbey
because he is a citizen of the United States. An exercise of that discretion might be warranted if Bosnia
renews its extradition request and the Department of State determines that the investigation into
Sacirbey’s tenure as United Nations Ambassador is motivated by a political vendetta, or that Sacirbey
faces mistreatment if he is delivered into Bosnian custody, or for any of the other grounds available to
the Department to decline extradition—or, indeed, for no reason at all, as the Treaty does not require
any justification for declining to extradite U.S. citizens. See Treaty for Mutual Extradition of Fugitives
from Justice, U.S.-Serb., art. V, Mar. 7, 1902 (date of ratification by the President), 32 Stat. 1890, 12
Bevans 1238 (“Neither of the high contracting parties shall be bound to deliver up its own citizens or
subjects under the stipulations of this Treaty.”). That determination rests, of course, with the Executive
Branch of Government, not the Judiciary.
26
Accordingly, the order of the District Court denying the petition is REVERSED, and
Sacirbey’s petition for a writ of habeas corpus is hereby GRANTED. The restrictions imposed on
Sacirbey’s liberty are VACATED and he shall not be extradited to Bosnia pursuant to the formal
requests that have been made.
It is so ordered.
27